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Is it Discriminatory to Discipline an Aggressive Employee?

Can an employee claim discrimination for being disciplined for aggressive behaviour linked to a disability?

In an employment context, an employer discriminates against a disabled employee under section 15 of the Equality Act 2010 if they treat the employee unfavourably because of something arising in consequence of the employee’s disability, and the employer cannot show that this treatment is a proportionate means of achieving a legitimate aim. We have previously considered the case of McAllister v Revenue and Customs Commissioners, and the circumstances in which an employer will be able to argue that alleged discriminatory treatment is in fact a proportionate method of achieving a legitimate aim. You can read more about this here.

In McQueen v General Optical Council, McQueen was employed by the GOC. McQueen’s disabilities, which included dyslexia, left-sided hearing loss, neurodiversity and some symptoms of Asperger’s Syndrome, had caused him some difficulties with workplace interactions. According to medical evidence, McQueen would raise his voice and adopt a tone indicative of aggression when stressed or anxious. In 2015, McQueen rudely challenged an instruction from a senior colleague using aggressive gestures and body language. A second confrontation occurred in April 2016, which left a colleague in tears, and there were various incidents of McQueen standing up at his desk and loudly speaking at others. McQueen was disciplined in June 2017 for performance-related matters, and a lengthy grievance process followed which stretched into 2018. McQueen brought Employment Tribunal claims, arguing that he had suffered unfavourable treatment because of something arising in consequence of his disability, under section 15 of the Equality Act 2010.

While the GOC accepted that there were certain consequences which flowed from McQueen’s disabilities, including the need for written communications reiterating verbal instructions and some physical workplace adjustments, they did not accept that McQueen’s requirements that he not be approached “in a seemingly confrontational manner” or that he stand up at his desk and speak at colleagues were a consequence of his disabilities. The Employment Tribunal agreed with the GOC that McQueen’s insistence on standing up arose out of habit, not his disabilities. As for the confrontations with colleagues, the Tribunal found that these did not arise from McQueen’s Asperger’s or dyslexia, but because of his short temper and resentment at being told what to do by others. The Tribunal concluded that none of the incidents were caused by something arising in consequence of McQueen’s disabilities.

McQueen appealed to the Employment Appeal Tribunal (EAT), arguing that a disability does not need to be the sole or even main reason for whatever arises in consequence of it, and only needs to have a significant or more than trivial influence, and that this test had been met.

The EAT dismissed the appeal and found that the Tribunal’s had properly noted McQueen’s disabilities and their extent and effect. The EAT did not accept McQueen’s argument that the Tribunal had adopted too strict a test when considering the effect of his disabilities. The Tribunal had not found that McQueen’s disabilities had a significant, but less than predominant, role in his conduct, as McQueen indicated – therefore, this was not a case in which multi-factor causation had to be analysed, rendering McQueen’s argument irrelevant.

This case confirms the accepted position that, where a claimant is treated unfavourably because of something arising in consequence of their disability, this disability must have had a significant or more than trivial influence on the conduct arising in consequence of it, if the claimant wants to succeed in their section 15 claim. The mere fact that the claimant is disabled, or that one might reasonably conclude that there is some connection between their disability and the conduct in question, is not enough. Employment tribunals should carefully examine whether any incidents are truly a consequence of the claimant’s disabilities, and consider whether other factors, such as McQueen’s short temper and resentment at receiving instructions in this case, might be the true cause.

Nevertheless, employers should still take care to make reasonable adjustments for their disabled employees and avoid treating them less favourably than other employees.

If you are concerned about an employee’s behaviour in the workplace or believe that there is a risk of a discrimination claim and would like employment law advice, please do get in touch at [email protected]